R v Goodwin [2017] NZDC 16955 (2 August 2017)

Last Updated: 24 January 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT TAURANGA

CRI-2016-070-003943 [2017] NZDC 16955

THE QUEEN

v

_{[KYLE GOODWIN]}

Date of Ruling:	2 August 2017
Appearances:	N Batts for the Crown N Dutch for the Defendant
Judgment:	2 August 2017

_{PRE-TRIAL RULING OF JUDGE P G MABEY QC}

[1] The Crown solicitor brings an application under ss 7 and 8 Evidence Act 2006 to admit evidence of a photograph at trial. Mr [Goodwin] is charged with intent to cause grievous bodily harm he disfigured [the complainant] who I understand to be a [relative]. The disfigurement is the biting off of a piece of [the complainant’s] left ear lobe.

[2] The Crown case is short. It is not intended to call [the complainant]. The three Crown witnesses will be a doctor who attended [the complainant] at hospital and who describes a two centimetre open wound over the superior lateral aspect of the ear resulting in exposed cartilage. The piece of ear that was bitten off was given to the

_{doctor in a bag of ice.}

R v [KYLE GOODWIN] [2017] NZDC 16955 [2 August 2017]

[3] Another witness is a police officer who attended [the complainant], photographed him and secured the piece of ear and put it on ice. He did so at the scene of the alleged offence.

[4] The third witness to be called by the Crown is a police officer who interviewed the defendant who described what had happened between himself and his brother and in doing so freely admitted that he bit [the complainant’s] ear. He said that after he had bitten the ear [the complainant] realised he was hurt and they both got up off the ground.

[5] The effect of the statement made by the defendant to the third police officer,

Constable Anderson, is that the defendant was being attacked by [the complainant], ran from the house, was chased by [the complainant] who was holding a tennis racquet and who grabbed him. There was a tussle and that is when the ear was bitten. That caused [the complainant] to back off but then he grabbed the racquet again and further chased the defendant who then armed himself with a piece of wood which seemed to have the effect of dissuading [the complainant]. It was the defendant who called the police.

[6] Mr Dutch objects to the admission of the photograph – which is photograph 12 of the current police photograph booklet – on the basis that it is prejudicial beyond any probative value. I have the photograph; it is a photograph of the left side of [the complainant’s] face. It shows damage to his left ear and what appears to be a missing piece of ear lobe. Mr Dutch raised no objection to the photograph of the ear injury but his objection is to the blood shown on the left of [the complainant’s] face and down his neck. It appears to be dried blood as the photograph was taken before his face was washed. Mr Dutch says that the image of the blood is not relevant to any issue at trial and thus assumes an illegitimate prejudice. He would not object if the photograph was limited to the ear injury only.

[7] Mr Batts, who appears for the Crown, is unsure if the doctor is to be called. It is his view, if he were to be the prosecutor, that the doctor would be called but he is not to be the prosecutor. During the hearing he checked with his office and it appears that the doctor has been summonsed. The complicating issue is that Mr Dutch has

written to the Crown saying the doctor’s evidence can be read. It is, therefore, not known if the doctor will be available when this trial starts on Monday morning, 7

August, before Judge Harding.

[8] Mr Dutch refers to the Appeal Court decision in R v Weatherston1 where leave to appeal was sought against a pre-trial ruling by Potter J in that case. She admitted photographs showing the serious injuries to the deceased in that case. They involve stabs to her eyes, face, breasts and genitalia. It was submitted that the photographs were gruesome and unduly prejudicial beyond any probative value. Leave to appeal was not granted as the Court considered the appeal to be without any foundation. Potter J’s ruling was upheld as in that case the photographs were highly relevant to the issue of murderous intent and provocation.

[9] In that case the Court was referred to its own decision R v Cui2 where at paragraph 88 the Court said:

If what is sought to be demonstrated by gruesome photographs can equally well be explained by other means, then those means should be considered... That simply demonstrates that the probative value of the photographs in that situation will be less than if they were the only effective means of demonstrating the point.

[10] Mr Dutch says that the doctor’s description of the injury and his client’s admission of the biting is all that is necessary. The image of a bitten ear with a piece missing can be amply portrayed to the jury in words without the need for a photograph. He says it would not be difficult for the jury to imagine an ear with a two centimetre laceration and a piece missing, no more is required.

[11] The Court of Appeal in both of the cases referred to was dealing with post-mortem photographs after a homicide involving serious injuries causing death. In R v Weatherston stabbing to the face, eyes, breasts and genitalia. In R v Cui a slit

_throat.

1 R v Weatherston [2009] NZCA 267

2 R v Cui CA333/05, 28 September 2006

[12] Mr Batts submits that it is important for the jury to see the photograph and refers to paragraph 29 in R v Weatherston where the Court of Appeal upheld Potter J in saying that a jury is entitled to the best evidence of the nature and extent of injuries. In R v Weatherston diagrams drawn by a pathologist were not the best evidence and did not adequately portray the injuries. The ultimate ruling being that the photographs were highly relevant to the issues at trial as they showed the extent of the injuries in a graphic way necessary to address those issues.

[13] Mr Dutch indicated that his client’s defence to this charge will be that he acted in self-defence. The narrative he gave to the police officer who interviewed him is consistent with that. He was being chased, he stopped, he confronted [the complainant] and it was at that point he bit his ear. Mr Dutch will say that in the circumstances that his client saw himself in he was acting in self-defence and it was reasonable for him to bite the ear to cause his brother to back off thus giving him the opportunity to escape.

[14] In respect to that Mr Batts says that biting an ear to cause someone to pause through the pain is one thing but biting a part of the ear off is another. The Crown position will be that to actually sever a piece of ear in those circumstances is unreasonable and in excess of self-defence. Mr Batts says it is only when the photograph is available to the jury they will be able to appreciate the amount of force that is necessary to remove a piece of ear and any description by the doctor will not be adequate for that purpose.

[15] I take the following view. Firstly, I do not consider the photograph to be particularly gruesome. Mr Dutch says he is happy with the ear alone to be shown, in other words if the face had been washed there would no objection. The reality is it is the ear that is gruesome, if anything is. Dried blood on a face is not, in my view, particularly gruesome or prejudicial. Wounds bleed, blood flows and it may or may not be washed off at any given point. When I look at the image in photograph 12 it is no more than dried blood, similar to what might be seen after a rugby injury or a minor scratch that has caused blood to flow. I do not consider that the jury could possibly be unduly prejudiced by dried blood on the face of a young man. As I said, it is the

photograph of the ear, which would not be objected to, that may inspire some emotional response.

[16] Secondly, whilst I accept that the doctor can describe the injury and that the defendant has admitted the biting of the ear, the photograph is the best evidence of the effect of the bite.

[17] Thirdly, if the doctor is to be called then the doctor is entitled to view the photograph when describing the injuries that he saw at the hospital. If the Crown intends to assert that excessive force was used that submission can really only be properly advanced on the basis of expert evidence. That evidence can come from the doctor. So the photograph would be valuable to support the doctor’s evidence as a pictorial image for him to view when describing not only the injury but the force that would be required to cause that injury.

[18] I observe that, even if the doctor’s evidence is to be read as conceded by Mr Dutch, there would be no basis to exclude the photograph. It is relevant, it has probative value in that it demonstrates the very disfigurement that is an element of the offence and it is not gruesome in the sense encountered by the Court of Appeal in the cases I have referred to. As I have said it is no more than dried blood on a face. It is correct that the blood is unnecessary to demonstrate the extent of the disfigurement and that is why Mr Dutch has said that he would not have objected to the photograph if the brother’s face had been washed. But even so the fact that there is blood on his face in this photograph is in my view insignificant. It is not an image that is likely to be illegitimately prejudicial and the reality is the blood is merely an incident of the wound and I am confident the jury would see it in that way.

[19] For all of the above reasons I grant the Crown’s application to include photograph 12 in the photograph booklet at trial. I rule that the photograph is relevant and has probative value and the fact that it includes the blood on the face is not illegitimately prejudicial to the extent that it overcomes any probative value of the photograph in its entirety.

[20] Mr Batts has said that it may be possible to crop the photograph so it shows the ear only. That is a matter for the Crown and would overcome Mr Dutch’s objection. But I am not directing that course be taken. I am ruling that the photograph in its entirety can be used for the reasons that I have given.

P G Mabey QC District Court Judge